Jenkins v. Bonds et al

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/31/2017 RECOMMENDING defendant's 40 motion for summary judgment be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE JENKINS, 12 No. 2:13-cv-2151-GEB-EFB P Plaintiff, 13 v. 14 BONDS, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 17 18 42 U.S.C. § 1983. Defendant moves for summary judgment, arguing that the undisputed facts 19 show that he did not subject plaintiff to excessive force; that plaintiff suffered no injury; and that 20 defendant is entitled to qualified immunity. ECF No. 40. For the following reasons, the motion 21 must be denied. 22 23 I. The Facts Presented by the Parties In his verified amended complaint, plaintiff alleges that on December 5, 2011, defendant 24 Bond (sued herein as “Bonds”) used excessive force against him during a transport from the 25 reception area at High Desert State Prison (“HDSP”) to his housing unit. ECF No. 14 at 3-4. 26 Plaintiff avers that he is mobility-impaired and requires the use of a cane due to lifelong injuries. 27 Id. at 3. Nevertheless, upon his reception at HDSP, a medical staff member told Bond that 28 plaintiff was faking his injuries. Id. When plaintiff told Bond of his injuries and need of a cane, 1 1 Bond replied that he knew plaintiff was faking and ordered him to get up and be handcuffed for 2 transport. Id. Bond handcuffed plaintiff very tightly, twisting his right hand downward and left 3 hand upward, causing severe pain. Id. Bond then snatched plaintiff upward with his right hand 4 under plaintiff’s shoulder, bending plaintiff over and dragging him the quarter mile to the housing 5 unit in sub-freezing temperature. Id. at 3-4. This caused plaintiff severe pain in his wrist, arms, 6 and back, which remained for three days. Id. Plaintiff told Bond that he was hurting plaintiff, but 7 Bond told plaintiff he knew plaintiff was faking because the doctor had told him so. Id. at 4. 8 A fellow inmate in the transport, Anthony Oliver, provided a sworn declaration which is 9 appended to the amended complaint. Id. at 7. Oliver avers that he saw Bond snatch plaintiff by 10 the right arm and drag him to make him walk faster. Id., ¶ 2. Plaintiff appeared to Oliver to be in 11 pain and plaintiff told Bond so, but Bond responded to plaintiff that he was faking. Id. Bond told 12 the other inmates in the transport that it was plaintiff’s fault they had to wait longer in the cold 13 weather. Id., ¶ 3. The temperature was about 15 degrees below zero. Id. Bond also applied 14 cuffs excessively tight to Oliver and threatened him with physical violence when he complained 15 about it. Id., ¶ 4. The walk to the housing unit took about 30 minutes. Id., ¶ 5. 16 Defendant Bond declares that plaintiff told him at the beginning of the escort that he was 17 covered by the Americans with Disabilities Act, but Bond confirmed with medical staff that there 18 were no limitations to plaintiff’s housing or escort. ECF No. 40-5, ¶ 5-6. Bond thus believed that 19 plaintiff could participate in the escort to his housing facility, a distance of about 150 yards. Id. 20 Bond was obligated to follow the medical orders in place at the prison regardless of what plaintiff 21 told him. Id. Bond ordered plaintiff three times to cuff up for escort, but plaintiff refused at least 22 two of those orders. Id., ¶ 6. It is Bond’s usual practice to slide a finger under the cuffs while 23 tightening them to ensure they are secure but not overly tight. Id. Bond declares that he never 24 snatched plaintiff but rather assisted him when he fell behind the other inmates. Id., ¶ 7. Bond 25 denies that he threatened plaintiff. Id. 26 S. Lopez, Chief Medical Executive at Kern Valley State Prison, reviewed plaintiff’s 27 medical records following December 5, 2011 at defense counsel’s behest. ECF No. 40-6. Lopez 28 “found that there were no diagnoses in plaintiff’s history to tie any injury to a December 5, 2011 2 1 incident with Sergeant Bond.” Id., ¶ 7. No records show new injuries or that plaintiff’s pre- 2 existing injuries were exacerbated. Id. Plaintiff’s medical file did not contain any healthcare 3 requests from plaintiff around December 5, 2011. Id., ¶ 8. 4 Plaintiff testified at his deposition that he heard physician’s assistant Miranda tell Bond 5 prior to the transport that plaintiff had no injuries. ECF No. 41, Notice of Lodging Pl.’s 6 Deposition (Pl.’s Dep.) at 20. He concedes that “Sergeant Bonds was under the actual belief, 7 from what Mr. Miranda told him, that I was faking my injuries.” Id. at 55. Bond ordered plaintiff 8 to cuff up many times and did not listen when plaintiff tried to explain his injuries. Id. at 22. 9 Bond put the cuffs on so tight that plaintiff’s wrist bulged, causing him pain. Id. at 31. The cuffs 10 pinched plaintiff’s skin and cut off his circulation, causing his hand to go numb. Id. Plaintiff told 11 Bond the cuffs were too tight. Id. Plaintiff was at the back of the line of inmates being 12 transported, with defendant lifting and dragging him, but plaintiff could not keep up. Id. at 32-33. 13 Bond stopped the line, moved plaintiff to the front, and told the other inmates that they could 14 blame plaintiff for the slow transport in the cold weather. Id. 15 Plaintiff further testified that, as a result of Bond’s conduct, his wrists became swollen and 16 painful with red bruises. Id. at 35-36. Bond’s transport made plaintiff’s back very painful, with 17 nerve pain shooting down his legs. Id. Plaintiff’s existing condition did not cause that degree of 18 throbbing pain. Id. at 37. Plaintiff verbally requested to see a doctor on either the evening of 19 December 5th or December 6th but was denied. Id. at 41, 45. He saw a nurse about three days 20 later and told her of his injuries but she purposefully wrote “no injuries” on the chart. Id. at 42- 21 43, 50-51. Plaintiff did not contradict her because his injuries were healing and he assumed she 22 was covering up for defendant Bond. Id. His wrist injuries healed in about a week, but his back 23 injuries became worse as time progressed. Id. at 65-66. His medical records do not reflect these 24 injuries because he was denied medical treatment continuously during his stay at HDSP. Id. at 25 82-83. 26 Plaintiff also described the incident on December 8, 2011 in a videotaped “use of force” 27 interview with a Lieutenant Albonico that defendant has lodged with the court. In the video, 28 plaintiff describes some of his injuries, but none are visible to the camera. 3 1 II. 2 The Motion for Summary Judgment Defendant argues that the undisputed facts show that he did not subject plaintiff to 3 excessive force, that plaintiff suffered no injury, and that he should be afforded qualified 4 immunity. As discussed below, there are genuine disputes over material facts that preclude 5 summary judgment in defendant’s favor. 6 A. Summary Judgment Standards 7 Summary judgment is appropriate when there is “no genuine dispute as to any material 8 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 9 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 10 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 11 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 12 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 13 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 14 motion asks whether the evidence presents a sufficient disagreement to require submission to a 15 jury. 16 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 17 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 18 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 19 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 20 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 21 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 22 motion and identifying those portions of the record, together with affidavits, if any, that it 23 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 24 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 25 its burden with a properly supported motion, the burden then shifts to the opposing party to 26 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 27 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 28 ///// 4 1 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 2 to summary judgment procedures. Depending on which party bears that burden, the party seeking 3 summary judgment does not necessarily need to submit any evidence of its own. When the 4 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 5 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 6 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 7 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 8 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 9 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 10 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 11 should be entered, after adequate time for discovery and upon motion, against a party who fails to 12 make a showing sufficient to establish the existence of an element essential to that party's case, 13 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 14 circumstance, summary judgment must be granted, “so long as whatever is before the district 15 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 16 satisfied.” Id. at 323. 17 To defeat summary judgment the opposing party must establish a genuine dispute as to a 18 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 19 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 20 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 21 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 22 determined by the substantive law applicable for the claim in question. Id. If the opposing party 23 is unable to produce evidence sufficient to establish a required element of its claim that party fails 24 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 25 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 26 at 322. 27 28 Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in 5 1 question. Where the party opposing summary judgment would bear the burden of proof at trial on 2 the factual issue in dispute, that party must produce evidence sufficient to support its factual 3 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 4 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 5 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 6 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 7 demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such 8 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 9 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 10 The court does not determine witness credibility. It believes the opposing party’s 11 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 12 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 13 proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l 14 Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing 15 Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary 16 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On 17 the other hand, the opposing party “must do more than simply show that there is some 18 metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead 19 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 20 Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary 21 judgment. 22 Concurrent with the motion for summary judgment, defendant advised plaintiff of the 23 requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. 24 ECF No. 40-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 25 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 26 849 F.2d 409 (9th Cir. 1988). 27 ///// 28 ///// 6 1 2 B. Analysis 1. Excessive Force 3 Prisoners have a right to be free from excessive force at the hands of correctional staff 4 under the U.S. Constitution’s Eighth Amendment. Clement v. Gomez, 298 F.3d 898, 903 (9th 5 Cir. 2002). To succeed on a claim of excessive force, a prisoner must show that a correctional 6 officer used force against him maliciously and sadistically to cause harm, rather than in a good- 7 faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To 8 determine whether the evidence establishes such a scenario, the factfinder may consider: (1) the 9 need for force; (2) the relationship between that need and the amount of force used; (3) the threat 10 reasonably perceived by the officer; and (4) any efforts made to temper the severity of the 11 forceful response. Id. at 7. 12 While not every “malevolent touch” by an officer violates the Constitution, Hudson, 503 13 U.S. at 9, the factfinder must focus not on the extent of injury but rather the extent of force used. 14 Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). De minimis uses of force do not violate the 15 Constitution unless they are “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9. 16 Defendant argues that the undisputed facts show that the force he used was minimal and 17 appropriate in light of plaintiff refusing to cuff up in response to two or three orders to do so. The 18 court disagrees. Defendant has presented no evidence that plaintiff’s attempts to explain to 19 defendant his need for specialized cuffs and a cane presented a risk of danger under the 20 circumstances. On the other hand, plaintiff has presented at least some evidence that defendant 21 applied the cuffs so tightly that it caused him pain and injury. See Wall v. County of Orange, 364 22 F.3d 1107, 1112 (9th Cir. 2004) (holding that “overly tight handcuffing can constitute excessive 23 force” under the Fourth Amendment); Candler v. Mallot, No. 2:14-cv-0363 GEB KJN, 2015 U.S. 24 Dist. LEXIS 62310, at *6-20 (E.D. Cal. May 12, 2015) (applying Wall in the Eighth Amendment 25 context). Plaintiff has testified to this fact several times and has submitted the declaration of a 26 fellow inmate who avers that defendant also applied cuffs too tightly to him during the same 27 transport. Both inmates state that they complained about the overly-tight cuffs to defendant. 28 Defendant’s evidence on this point – that plaintiff’s wrist bruises were either not noted or no 7 1 longer noticeable to the nurse three days later and that defendant’s normal practice is to apply 2 cuffs so that they are not too tight – simply raises a material factual dispute regarding whether he 3 applied the cuffs too tightly. 4 Plaintiff has also submitted evidence (in the form of his and inmate Oliver’s testimony) 5 that defendant handled him in an overly rough manner during the transport and told the other 6 inmates that they could blame plaintiff for the slow transport in cold weather. If credited by the 7 factfinder, this evidence may establish that defendant used more force than was necessary against 8 plaintiff with intent to cause him harm rather than because he wished to safely complete the 9 transport. While defendant disputes this evidence, his evidence does not definitively refute it, and 10 summary judgment on the claim is therefore inappropriate. 11 2. Injury 12 Defendant argues that plaintiff lacks sufficient evidence that he suffered injury as a 13 consequence of defendant’s conduct. The undersigned disagrees. Overly-tight handcuffs need 14 not produce a visible physical injury to support a claim of excessive force; it is enough that the 15 cuffs caused plaintiff “unnecessary pain,” which plaintiff avers that they did. Thompson v. Lake, 16 607 Fed. Appx. 624, 625 (9th Cir. 2015); Candler, 2015 U.S. Dist. LEXIS at *19-20. In addition, 17 plaintiff has testified that defendant’s conduct worsened his back and nerve pain. Defendant’s 18 evidence – that defendant’s medical expert finds no injury in plaintiff’s medical records 19 attributable to defendant’s conduct and the absence of visible injuries on the use of force 20 videotape – simply raises a material dispute regarding the existence and extent of plaintiff’s 21 injury. 22 23 3. Qualified Immunity Lastly, defendant argues that he should be granted qualified immunity from plaintiff’s 24 claim. Qualified immunity “protects government officials from liability for civil damages insofar 25 as their conduct does not violate clearly established statutory or constitutional rights of which a 26 reasonable person would have known.” Mueller v. Auker, 700 F.3d 1180, 1185 (9th Cir. 2012). 27 To determine whether an official is entitled to qualified immunity, the court must consider (1) 28 whether, taken in the light most favorable to the plaintiff, the facts show that the officer’s conduct 8 1 violated a constitutional right, and (2) whether the law clearly established that the officer’s 2 conduct was unlawful in the circumstances of the case. Saucier v. Katz, 533 U.S. 194, 201 3 (2001). The court can consider these two “prongs” of the qualified immunity analysis in the order 4 of its choosing. Pearson v. Callahan, 555 U.S. 223, 244 (2009). 5 Defendant first argues that the evidence shows that he did not violate plaintiff’s 6 constitutional rights. As discussed above, the undersigned finds that triable issues of material fact 7 exist on that question, and thus defendant may not be granted qualified immunity on that basis at 8 this stage of the proceeding. 9 Defendant next argues that the law did not clearly establish his conduct to be unlawful 10 under the circumstances of this case because he reasonably relied on medical staff’s statement 11 that plaintiff did not require accommodation and could participate in the escort. The undersigned 12 agrees that this undisputed fact – that physician’s assistant Miranda told defendant that plaintiff 13 was faking his injuries – made it reasonable for defendant to refuse to provide plaintiff with a 14 cane or other accommodation during the transport. However, plaintiff has submitted evidence 15 that defendant injured him with overly-tight handcuffs and deliberately rough handling during the 16 escort. Taking the evidence in the light most favorable to plaintiff, such conduct would not have 17 been a reasonable response to Miranda’s statement about plaintiff’s injuries (or lack thereof). 18 Instead, plaintiff’s evidence tends to show malicious conduct unwarranted by the circumstances. 19 Accordingly, qualified immunity should not be granted to defendant at this time. 20 III. 21 22 Recommendation For the reasons above, it is hereby RECOMMENDED that defendant’s April 17, 2017 motion for summary judgment (ECF No. 40) be denied. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 28 ///// 9 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 31, 2017. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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